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Justices to hear Washington appeal of salmon habitat order

UPDATED: Fri., Jan. 12, 2018

By Linda V. Mapes The Seattle Times

SEATTLE – The U.S. Supreme Court will hear Washington state’s culvert case this year, heating up a 17-year legal battle over the state’s duty to protect and restore salmon habitat as part of its obligation to respect tribes’ treaty fishing rights.

The case, Washington v. U.S. et al., initially was filed by 21 Washington tribes with treaty-protected fishing rights in 2001. At issue is the state’s obligation to repair road culverts that block salmon from their spawning habitat.

Culverts that are too small, or pitched too high above the streambed, or in other ways are unsuitable for fish passage destroy miles of habitat above the culvert. That depletes fish runs that tribes rely on and are entitled to by treaties.

In signing treaties with the U.S. government in the 1850s that ceded thousands of miles of territory for non-Indian settlement, tribes reserved their right to fish at their usual and accustomed places. That right to fish was affirmed in 1974 by U.S. District Court Judge for the Western District George Boldt, and later upheld by the U.S. Supreme Court. It divided the catch between tribal and nontribal fishers and also established tribes as co-managers of salmon with the state of Washington.

The culvert case is an extension of that decision, in which tribes have argued that their reserved treaty right is meaningless if habitat that sustains fish runs is allowed to degrade until there are no fish to catch. Courts have agreed.

In 2013, U.S. District Court Judge Ricardo Martinez for the Western District ruled the tribal treaty right to harvest salmon includes the right to have salmon protected so there are enough to harvest. The court gave the state 17 years to reopen about 450 of its 800 culverts that pose the biggest barrier to fish in Western Washington.

The state appealed that case to the Court of Appeals for the 9th Circuit and lost, and lost again when the state asked the appeals court to reconsider. Meanwhile, culvert repair has continued under the state Department of Fish and Wildlife, Department of Natural Resources, and state parks. The Washington Department of Transportation, with the most culverts to repair, has committed additional funding to culvert repairs, which it has continued to make as it does road projects all over the region.

At the rate repairs are going, WSDOT is close to meeting the court’s mandate, though more funding is needed.

Tribes and the state have been in negotiations to settle the case but in a news release issued Friday, Washington Attorney General Bob Ferguson said discussion so far did not resolve his concern that the 9th Circuit decision is overbroad and could be used by tribes to insist on other steps, such as dam removal or curtailment of logging, farming or construction that affects fish habitat.

“We have worked hard to reach a resolution in this case outside of court,” Ferguson said. “To that end, I have personally met with tribal leaders three times in an effort to reach agreement. While we made progress, we have not reached a mutually acceptable resolution.

“Now that the Supreme Court has accepted review of the case, I hope that all 21 tribal governments will agree on a proposal that recognizes the State’s serious concerns with the 9th Circuit ruling and allows us to continue our conversations.

“If we cannot reach a resolution, I have a duty on behalf of the taxpayers of Washington state to present our case to the U.S. Supreme Court.”

Tribes stated in a news release Friday they are confident their treaty fishing rights will once again be upheld.

“The culvert case brings a rare opportunity to achieve a net gain in habitat that salmon desperately need,” Lorraine Loomis, chair of the Northwest Indian Fisheries Commission, said in a prepared statement.

The tribes criticized the state’s decision to continue to fight the mandates of multiple courts.

“Instead of continuing to appeal the culvert case, tribes believe the state should use the momentum it has gained over the past four years to finish the job of fixing fish-blocking culverts and focus on our shared goal of salmon recovery,” Loomis said in a news release issued by the commission Friday.

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